Update on Ban the Box Laws: A Growing Movement

If it seems to you like Ban the Box laws are everywhere, you are not far off. The National Employment Law Project (NELP) estimates that up to 185 million U.S. citizens are living in a ban-the-box jurisdiction, taking states and local governments into account. That’s more than half the country’s current population.

Ban the Box laws and the groups that promote them are driving a lot of the conversation about hiring ex-offenders. The core premise of the campaign is to eliminate the discrimination that can occur when employers exclude applicants with criminal histories without first delving into their individual characteristics to see if they are qualified for the job in question. Ban the Box advocates have strong allies in federal and local governments and in many communities.

It’s interesting to review the progress of the laws across time and space. More recent versions of the laws show some tendency toward converging with federal Equal Employment Opportunity Commission (EEOC) guidelines as well.

Which States are Covered?

The United States has seen extremely fast changes in public perceptions on a number of issues in the past 20 years, and attitudes toward hiring ex-offenders is one of them. When a group called All of Us or None first started organizing for Ban the Box laws in 2004, only Hawaii had one. Today, 24 states and over 100 local jurisdictions have a form of Ban the Box law.

You can see from this list how much the campaign has accelerated, with Minnesota an early adopter in 2009, and a few more in 2010. Then a large number of states adopted a version of the law and/or updated an earlier version in the mid-2010s. We cannot tell if the trend will continue, but there is no apparent reason why it would not.

Trends in Content of the Laws

Hawaii, the outlier in the group, is also unusual because its version of the law included a prohibition for private employers to use a blanket exclusion of ex-offenders. More common in the first adopters was to write a law that prohibited government agencies from excluding applicants solely because of a criminal record.

Over time, it has become more common to cover private employers. For example, when Minnesota adopted its first version of the law in 2009, private employers were not covered, but in the 2013 update, they were. There are now 9 states that have removed the criminal conviction question from an initial application for private employment, including Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.

A few recent laws have even included specific provisions about the kind of individual-level research employers have to do in order to exclude and applicant because of a criminal conviction. An example is the 2015 Washington DC law that stipulates criteria to use to evaluate a conviction, include how long ago it happened and whether it is clearly related to the job in question. Provisions like this move very closely in line with EEOC guidance, which emphasize “individualized assessments” in the use of arrest and conviction records for employment decisions.

The specific features of Ban the Box laws vary across jurisdictions, but their core purpose is consistent. The most important takeaway is that employers may be well-advised to review and revise their hiring processes as needed to comply with the intent of Ban the Box.